Bowman v. Monsanto could open GM Pandora’s box

It was only a matter of time; genetically modified seed technology was always destined for a Supreme Court decision.

Having already turned down two similar cases, the Supreme Court’s review of Bowman v. Monsanto will have ramifications well beyond biotechnology and may serve as a patent law benchmark for technological innovation. Monsanto knew this case, or a similar one, would be reviewed eventually by the nine SCOTUS justices.

The case could rip open a GM Pandora’s box, but Monsanto is hoping the outcome brings a degree of legal closure on GM seed patents.

John Bowman, a 75-year-old Indiana farmer, was sued by Monsanto in 2007 over seed patent infringement. In 1999, he had planted Monsanto’s Roundup Ready soybeans early in the season, and wanted to plant a second crop later that same year. But with the second planting, Bowman didn’t buy his seed through conventional means, and instead purchased seed from a local grain elevator. The seed that he bought — labeled as “outbound grain” — was not being sold for planting purposes and is generally used as a feed source for cattle.

Although, the “outbound grain” wasn’t brand marked, 90 percent of Indiana soybeans are Roundup Ready, and Bowman believed he would be getting herbicide-resistant seed. He was exactly right — and repeated the process for a number of years. Monsanto accused Bowman of skirting their licensing agreement and sued him for a breach of their seed patents, even though Bowman’s “outbound grain” was second-generation seed. Monsanto has sued over a hundred farmers in similar circumstances, and again, one of these cases was bound to climb to the top of the U.S. legal ladder.

SCOTUS will decide if Bowman acted legally — and if the Feb. 19 questions put to Bowman’s legal team are a decent indicator, the justices (at least some of them) appear skeptical of Bowman’s position.

Justice Stephen Breyer certainly seemed to tip his hand regarding Bowman’s second-generation seed purchase, “You can feed it to animals, you can feed it to your family, make tofu turkeys. But I’ll give you two that you can’t do: One, you can’t pick up those seeds that you’ve just bought and throw them in a child’s face. You can’t do that because there’s a law that says you can’t do it. Now, there’s another law that says you cannot make copies of a patented invention.”

And from Chief Justice John Roberts: “Why in the world would anybody spend any money to try to improve the seed if as soon as they sold the first one, anybody could grow more and have as many of those seeds as they want?” (Granted, this is the same John Roberts that seemed to pull an about-face during the health care deliberations.)

Many cheer for Bowman as a “David” fighting “Goliath” and relish the potential damaging impact on the biotech industry. But the simple reality is, without seed technology patent protections, no company (Monsanto or any other) is going to invest hundreds of millions to produce products vital to agriculture and global food security. And agriculture is merely one player on the legal stage: The seed patent issue may set precedents for medical research and nanotechnology.

Agricultural history is rife with legal fights, and Bowman v. Monsanto dredges up the nightmares of Eli Whitney’s cotton gin patent debacle. Whitney’s 1793 cotton gin invention revolutionized agriculture, but it never brought him wealth. His gin was copied in state after state and Whitney could only watch, a true guinea pig for the U.S. patent office.

Whitney’s despair still packs a punch: “Some inventions are so invaluable as to be worthless to its inventor.”

As Bowman v. Monsanto plays out in the Supreme Court, Whitney’s ghost will be watching from the fringe — and likely pulling for Goliath.